Com. v. Baptiste

• Decision Date: 08 June 1977
• Citation: 372 Mass. 700,363 N.E.2d 1303
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1303

363 N.E.2d 1303

372 Mass. 700

COMMONWEALTH v. Richard BAPTISTE.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Dec. 6, 1976.

Decided June 8, 1977.

Richard N. LaSalle, Fall River (Raymond G. Mullen, Fall River, with him), for defendant.

Francis M. O'Boy, Asst. Dist. Atty. (Earl M. Seligman, Asst. Dist. Atty., with him), for the Com.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from his convictions on two indictments charging the crimes of murder. The indictments were tried together and they resulted in verdicts of guilty of murder in the first degree for which the defendant received two sentences of life imprisonment in the Massachusetts Correctional Institution at Walpole to be served consecutively.

Although the defendant originally assigned many alleged errors by the trial judge, and has listed fourteen such errors to be argued in his brief, the brief includes purported argument on only ten issues, nine of them dealing with rulings on the admissibility of evidence, and one dealing with alleged improper closing argument by the prosecutor. All assignments not argued in the brief are treated as waived. S.J.C. Rule 1:13, as amended, 366 Mass. 853 (1975). COMMONWEALTH V. BAKER, --- MASS. --- , 330 N.E.2D 794 (1975)^A. As to certain of the assignments of error purported to be argued in the defendant's brief, the coverage consists of no more than 'a terse and very sketchy reference . . . (thereto), but it falls short of anything that can properly be called argument.' Lolos v. Berlin, 338 Mass. 10, 14, 153 N.E.2d 636, 639 (1958). Commonwealth v. Martin, 358 Mass. 282, 290, 264 N.E.2d 366 (1970). We note that the argument on the nine alleged errors in evidentiary rulings does not include a single citation to a statute, judicial precedent, or other authority in support thereof.

We have examined all the alleged errors which were actually argued and we conclude that as to those there was no error. Additionally, as to each indictment we have considered the whole case on the law and the evidence as required by G.L. c. 278, § 33E, and we conclude that the defendant is entitled to no relief thereunder.

Before considering each of the ten assignments of alleged error it may be helpful to summarize some of the evidence presented against the defendant.

In July, 1973, the defendant, who was then thirty-nine years of age and was serving a sentence imposed on him for an offense in California, escaped from a forestry prison camp and returned to New Bedford in this Commonwealth where he had previously lived for some time. He obtained employment as a helper on a truck and also worked several evenings each week at a lounge which served liquor. Sometime in August, 1973, he met Donna Rebello, age twenty-three, at the lounge. She lived in an apartment at 474 County Street in New Bedford. He moved into an apartment in the same building on November 15, 1973. He testified that on that date, after moving in, he first learned that Donna Rebello lived at the same address. He further stated that on that date and on four or more occasions in the next several weeks he was intimate with her in either his or her apartment, and that Beverly Plaud, age nineteen, lived in the same apartment with Donna. About November 28, 1973, the defendant moved to an apartment at 34 Reynolds Street in New Bedford. That evening the defendant was at work at the lounge and Donna was a patron there for several hours, leaving about 10 p.m.

About 6 a.m. of the next day police officers found both Donna and Beverly dead in their apartment. There was medical testimony that on the body of Beverly there were about fifty stab wounds, seventeen of which went deep enough into the chest and abdomen to involved both lungs, the heart, the liver, and the stomach, and that there were also numerous blunt injuries. Her death was caused by the multiple stab wounds. On the body of Donna there were widespread blunt injuries, and there were two stab wounds on the neck cutting the main artery which brings blood to the face and brain, and cutting deeply enough to hit the spine. Her death was caused by the stab wounds and performation of arteries.

On November 29, 1973, the New Bedford police arrested and charged a person other than the defendant with the murders. That person was also a tenant in the building at 474 County Street, and he was arrested after positive benzidine tests were made of his person, clothing, and portions of his apartment on November 30, 1973 The suspect explained that he had handled some dog food and was thus exposed to blood, and he denied ever being in the apartment of the victims.

After the arrest of the first suspect the police continued their investigation. They had information that a portable television belonging to Beverly and which was in the apartment on November 28, 1973, was missing when they discovered the crimes. They also continued to check out fingerprints found in the apartment and they excluded the possibility that the prints were those of the suspect already arrested, the victims, or any of the police officers. One such fingerprint was an imprint in blood on a health identification card which had been issued by the New Bedford health department to Donna Rebello on November 16, 1973, to indicate that she had undergone a tuberculin skin test. That card was found by the police on the floor of a room in the victims' apartment on November 30, 1973, after the bodies and a number of articles had been removed. On January 5, 1974, the print on the health card was compared to prints in the police files and was identified as that of the defendant.

On the next day several members of the New Bedford police department and counsel for the department went to the Plymouth County house of correction where the defendant was being held as a fugitive from California, and they questioned him about the two killings. They first informed him of his rights under the Miranda rule, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and then told him of the identification of his fingerprint on Donna's health card. They noticed that there was a television in his jail room or cell and they identified it as the one which had disappeared from Beverly's room on the night of the killings. The defendant said that a week before the killings he had purchased it from Donna for $20. The police told him that they had a witness who could place the television in the victims' apartment on the evening before their deaths.

The defendant then said that he had an idea the police were going to charge him with murder, but that he would tell them the truth, and he made the following statement. On the evening of November 28, 1973, he arranged with Donna to meet her at her apartment after he ended his work at the lounge. He arrived at her apartment about 1:30 or 1:40 a.m. on November 29, found the door ajar, saw Donna's body on the floor and started to call the police but, realizing that he was a fugitive from justice, he did not complete the call. He looked into the bedroom and saw Beverly lying on the floor at the foot of the bed. He rummaged through a wallet. As he was backing out of the bedroom he saw that the television was still turned on and was flickering and he took it and left the apartment. His statement was in some respects different from a statement he had given the police in the early stages of the investigation.

There were other developments which tended to shift suspicion of guilt away from the person first arrested by the police and toward the defendant. One development occurred at a New Year's party on December 31, 1973, or early on January 1, 1974, when the defendant made the statement that he did not believe that the person originally arrested by the police for the killing of Donna and Beverly had committed the crimes, and that the cuts on the victims 'looked like they were surgical wounds or cuts.' The police were told about this statement at a later time. Another development occurred on April 7, 1974, when the suspect first arrested was subjected to a polygraph test at the request of the police. The test was administered by Leonard H. Harrelson, the president of Leonard Keeler, Inc., and director of the Keeler Polygraph Institute, who had conducted tests on approximately 50,000 individuals over a period of about twenty years. His basic conclusion from the test was that the suspect was telling the truth when he denied that he had committed the homicides. The defendant was indicted for these crimes on May 3, 1974, and the man first arrested was never tried.

It would add nothing of jurisprudential value to this opinion to spread on the record any details of the evidence describing gory and sordid aspects of the case except to the extent that it may be necessary to do so in the discussion of the ten alleged errors which the defendant purports to argue separately in his brief.

The cases were submitted to the jury for decision after a charge from the judge which included instructions on two categories of murder in the first degree as defined by G.L. c. 265, § 1, viz., '(m)urder committed with deliberately premeditated malice aforethought, or (murder committed) with extreme atrocity or cruelty.' There is no claim of error in the instructions.

1. A crucial issue of fact in these cases was the time at which the two victims were killed. The Commonwealth attempted to prove that the deaths occurred at the approximate hour of 1:30 or 1:40 a.m. on November 29, 1973, which by the defendant's admission to the police at the Plymouth County house of correction on January 6, 1974, and again while he testified at his own trial, was the approximate hour and date that he arrived at the victims' apartment.

There was evidence that between 8 and 10 p.m. on November 28, 1973. Donna Rebello had partaken of some alcoholic beverages at the...